Listen to a recap of the Environmental Law Center's community conversation on the opening case of the Supreme Court’s term, Suncor Energy v County Commissioners of Boulder County. Moderated by Professor Christophe Courchesne, associate dean for environmental and experiential programs and director of the ELC, panelists Professor Emeritus Patrick Parenteau, Assistant Professor Rachel Westrate, and Anthony Iarrapino JD’03 of Wilschek Iarrapino Law Office, PLLC discussed the Supreme Court's October 5 arguments and what the case means for the future of climate accountability.
An excerpt of a special community conversation about the oral argument in Suncor Energy v County Commissioners of Boulder County, which was held a few days after oral arguments in the case were held at the US Supreme Court. The case considers the defendant oil companies’ appeal of a decision for the Colorado Supreme Court, which allowed Boulder’s climate nuisance case against those companies to go forward. We are sharing panel’s introductory remarks and their final takeaways. Click here to hear the full conversation and the Q and A afterwards.
Narrator
This podcast is a production of the Maverick Lloyd School for the Environment at Vermont Law and Graduate School.
Rachel Westgate
Hello and welcome to Hothouse Earth. I am Rachel Westgate, assistant professor of law at Vermont Law and Graduate School for this episode of Hothouse Earth. We are pleased to share an excerpt of a special community conversation about the oral argument in Suncor Energy v County Commissioners of Boulder County, which was held on campus a few days after the oral arguments were held at the Supreme Court on October 2026.
The case considers the defendant oil companies appeal of a decision from the Colorado Supreme Court, which allowed Boulder's climate New City suit against those companies to move forward. We are sharing the panel's introductory remarks and their final takeaways. To hear the full conversation and the Q&A, click the link at our show minutes.
Christophe Courchesne
Welcome, everyone. My name is Christophe Courchesne. I am associate dean for environmental and experiential programs and director of the Environmental Law Center. I co-direct the Environmental Advocacy Clinic as well, and I'm delighted that you're all here for an event we've titled "ELC presents Community Conversation on Suncor Energy versus Boulder". The Supreme Court case that was argued was held on Monday was the first argument of the term.
It's a really, really important case about the future of climate litigation in the United States. And so we are delighted to have you all here. Those of you online as well, to hear a community conversation with an absolute expert panel of folks who really understand this issue and have thought about how we can address climate through the legal system.
And they've been doing that for a long time. So to my right is Professor Emeritus and Senior Fellow for Climate Policy Pat Parenteau. To his right is Assistant Professor Rachel Westrate. And to her right is Anthony Iarrapino, Class of 2003. Go Swans. Thank you. Anthony is delighted to have him back and he is a multi-talented public interest minded attorney in Montpelier with a very diverse practice and has played a significant role in work around the Vermont Climate Superfund Act, which was the first in the nation climate Superfund bill.
With that, what I'm going to do is invite the panel to sequentially talk a little bit about the recap of the argument from their perspective, beginning with Pat. And after that, we will talk a little bit about the next steps and what it means for the future of climate litigation policy.
Pat Parenteau
So there are two buckets of claims. They're all based on state law, state common law, state codified law in bucket one are classic tort claims, nuisance, both kinds of public and private trespass, negligence, strict liability. Those are most of them in the other bucket. The one that's more interesting and the one that didn't get as much focus as I would have expected in the oral argument are consumer protection claims, misrepresentation, deception, fraud.
Okay. So keep this in mind as we start dissecting what did and didn't happen, if this case is framed as interstate slash international pollution, Boulder loses. That's my prediction. If this case is framed as Boulder exercising traditional all state authority to police abuse of Colorado citizens, consumer protections, if it's a fraud case, a deception case, Boulder wins. Another possible outcome, of course, is a split decision because Alito recused himself finally at the last minute because his wife owns stock, not in Exxon.
And Suncor, which are the two defendants in the case argued on Monday, but in many other Conoco Phillips and many other holdings. So he stands to gain personally, financially from a decision in this case. So that's why he recused that. You know, introduces the possibility of a44 split in which case decision of the Colorado Supreme Court is affirmed.
The court teed up a second question presented. The first question was, does federal law writ large, preempt, preclude, prohibit this lawsuit? In fact, all of these lawsuits, maybe even Vermont's lawsuit, based on the statute Anthony had a hand in drafting. I'll let him talk about that if he wants. There is a possibility of that split. That would mean if you assume you you have to assume if you're Boulder, that you have three liberals justices of the court, you have to have Sotomayor, which you do.
You have to have Jackson which you do. And you have to have Kagan, which you may or may not based on her questions. So that means one, two, three, you need one more. Is that Justice Thomas is Justice Gorsuch is Justice Kavanaugh?
Justice Chief Justice Roberts Mm mm. Fascinating. If in conference when they do a straw poll, which happens if it doesn't happen on Friday, it'll happen next week. If it looks like it's going to be 4 to 4, then what you might see is a cert petition prominently granted a kick. The can decision to not reach the merits. That's a remote maybe name.
I don't know if it's a remote possibility. It's possible. It's possible. So now let me go to the theories. Okay. So where did the court go? I followed all of these cases. Full disclosure, I've been involved in fashioning many of these cases. And up till now, the oil companies arguments have always been federal law preempts these state claims.
And that means both federal common law would preempt them. But of course, in the AEP decision, the Supreme Court displaced federal common law. There are still courts that get confused about that and still think that because federal common law has been displaced, that means state common law has been displaced. That's bad logic, bad law, bad thinking. That's not true.
Displacement and preemption are two entirely different, distinct doctrines with very different jurisprudence attached to each right. So what happens now is, Mr. Shanmugam, his theory now is that the constant tution itself precludes these these claims, these this lawsuit, the structure of the Constitution, the history of the framing of the Constitution at the Constitutional Convention, he's got two theories that he kept getting mixed up.
And Kagan called him out on this several times. One is what we call the coast sovereigns. So state, federal sovereigns and up four. Again, this is where the pollution angle comes in. If we're if what we're talking about is international, interstate, international pollution, that's the province of the federal government, unless and until Congress authorizes states to enter that field.
The other doctrine is extraterritorial, which means one state can't export its law to another state or many states or other nations. Right. So keep these things in mind. The theory now that the oil companies are going with is it's the constitution itself that precludes these cases. When pressed, however, on either of those, most famously by Kagan saying, where does it say that in the Constitution, what precedent do can you cite that interprets the Constitution that way?
What kind of support do you have for that? What is anything that you have to support that there was no real answer to that. So when pressed, the argument becomes, Oh, well, then there's the Clean Air Act. You have a central argument that it's the it's the Constitution itself that precludes these cases. But if that's not working entirely, then the Clean Air Act is also available.
The problem with the Clean Air Act argument is it doesn't preempt the states. Quite the contrary, It explicitly authorizes source state. And so you have an explicit recognition of Congress that some state law or common law statute in codified statutory law is not preempted, but the affected state law is preempted. That's that decision. So in Vermont's case, we sued the IP pulp mill in Purchase, New York, across the lake. Right. And it was a Vermont resident. Hummel Roulet sued and so the court, the Supreme Court said, okay, the savings provision of the Clean Water Act, which is identical to the one in the Clean Air Act, says that affected states, i.e. Vermont law is preempted. But source state law, i.e. New York is available under a choice of law concept for deciding whether or not IP, the New York company, is liable for a nuisance in Vermont.
Rachel Westrate
Thanks, Pat. So it's great to be with you all here today. I was actually in D.C. this weekend and at the core on Monday morning. And so I wanted to zoom out a little bit to give you all a picture of sort of like what that looks like. There was like a real palpable energy around the court in the morning.
Protesters came wearing bright orange, make big oil pay shirts, holding banners outside of the Supreme Court. And what was happening outside the court, I think, really drove home what is happening in this lawsuit in a way that we didn't get inside the court or the justices and the advocates really explaining, which is that climate change is a huge problem and it's costing a lot of money and it's affecting a lot of people and it's affecting states and municipalities and cities and individuals in a way that is impossible to fathom how to fix it.
And so while we're talking about, like all of the specific legal claims that are happening in these cases, I think that at their base, this really is like an adaptation problem right there. This is tied to emissions. We're talking about how many of the emissions that these companies are responsible for. But in my view, what's really being asked of these companies is to contribute to a problem that they caused and they caused that through emissions.
But at the end of the day, we're talking about floods and fires and droughts and how to keep these these, you know, states and counties and and people's homes livable. And I think that's really important and was sort of missed in the argument that we saw it in in the courtroom. Now. Now, on one side of it, you get Kavanaugh who apparently decided that his one case that he argued before the court in 2018 was not enough.
And he actually wanted to argue this case before the court, too. And and you saw Justice Kavanaugh really stepping in to the shoes of an advocate in a very strange way, when the Suncor lawyer was speaking and saying, like, I actually think that the better argument that you have here is talking about this series of cases, this precedent from the Supreme Court that that was mentioning in a series of four cases, Milwaukee, one, Milwaukee, 208 and then AEP and and so we sort of know where Justice Kavanaugh stands.
But the other justices, I think, really were we're looking at this hard and we're really shying away from this constitutional theory that was being presented, because, to be quite honest, it is like very broad and very new and like not how normal people understand the Constitution. And you get that with what Pat mentioned and Kagan really questioning like, where is this in the Constitution?
Like you're coming to us saying this is constitutionally prohibited, but we're not seeing anywhere that that that is said. And so I think that that really what we might get here, if not a44 split, is some sort of jurisdictional that is sort of not reaching the merits, because I think the conservatives on the court are a little worried about reaching the merits at this stage.
We don't have that much information. We saw Barrett and Roberts and Gorsuch all sort of not a 100% giving in to the oil companies theories. We saw Jackson and Sotomayor really thinking that this case came too soon before the court. That's because a lot of factual determinations have not been made. So one of the big questions is in the U.S. decision, we have state law that remains in place that can be used even in these cases of interstate pollution.
But we don't know what the source state law is that that choice of law analysis hasn't even occurred in the state courts yet. And so we might be using Texas law to sue in Colorado, if that's the source. I think there's there's sort of an underlying question that they didn't get to an argument, which is actually Suncor has two refineries in Colorado.
So having Colorado state law apply to two oil refineries that are in Colorado makes a lot of sense. But none of those have happened. We don't have any information on the facts on how much pollution, how many greenhouse tons of greenhouse gas emissions these companies have emitted. And so those determinations, I think Jackson and Sotomayor are certainly really concerned about Kagan, extremely concerned about these constitutional issues, sort of not wanting to go there.
I think there's also this background thing looming that we had heard Kagan talk about, which is that the Trump administration has repealed the endangerment finding on greenhouse gases and said that the EPA legally can't regulate them under the Clean Air Act. And I think that legally part is really important because there is a case decided in 2008, Massachusetts, the EPA, where the Supreme Court said, in fact, EPA can regulate greenhouse gases if they find that they endanger public health and welfare.
That's a scientific finding. EPA found that greenhouse gases endanger public health and welfare, which triggers the clean air Act that says you actually have to regulate those pollutants if they're endangering public health and welfare. When the Trump administration pulled that act, they didn't say, we have a new scientific finding that these are not endangering public health and welfare.
They said, legally, the Clean Air Act doesn't allow us to regulate them. They sort of are pushing back against Supreme Court precedent in Massachusetts, the EPA, that case that the Trump administration has been sued about this and this is working its way through the courts, but it's not at the Supreme Court yet. And you've got Justice Kagan saying we are not deciding that case here.
But I think there might be a reason for more than just the liberal justices to want to wait to hear what comes out of that case before they make any determinations in this case. And that would be a reason that the four four split might work. Did the Colorado Supreme Court stand or to dismiss this either on jurisdictional issues or dismissed as in providentially granted, which is something that can happen if they decided they shouldn't have heard this this case in the first place, which would allow it to go back to state courts, have those factual determinations made in the state trial court build up a record, and then maybe come back to the Supreme
Court one day. And after it has gone through the state court system and we've gotten a judgment on the merits. And and I think that because of this Clean Air Act issue and because there's a lot of consternation with a lot of the justices on the constitutional issue, I think relying on that constitutional argument that that the oil companies are making is not where a lot of the justices want to land.
So I will stop talking there and hand it over to Anthony.
Anthony Iarrapino
Great. Well, you've given me some excellent segues to launch from. I'll start with where you ended, which is the practical concern, and you could see as a matter of appellate advocacy. Shanmugam and Deputy Solicitor Harris really harping on the broad effect, the ripple out that ruling for Boulder could have in this case. And there's a simple answer to that.
As an appellate advocate that wants to remind the court of its role in a constitutional order with separation of powers. And that answer is Congress can preempt these lawsuits. All they have to do is pass a law. And in fact, that law is now pending for consideration in Washington, DC. Versions of that law have been introduced time and time again, and it has not been adopted.
That is an answer that was given by Mr. Russell at different points of the argument, but I think is a theme that he could have picked up on and hammered home even harder. In fact, there is an analogous precedent when you have concerns about a widespread societal problem that could shut down an industry that's, in some people's view, a critical industry, that that's something Congress can do.
And it's an appropriate thing for Congress as a policy-making body to do. The courts are not supposed to be making policy, but increasingly that is what the Roberts court does. And that's why I was concerned when I heard him start to go down that road, because during Mr. Shanmugam argument, he seemed pretty like I'm not so sure.
This feels to me like other things we have let go forward, such as tobacco lawsuits and other mass tort and construct what are known as constructive presence, tort cases where someone does something in another state that causes an injury in the second state and the person who's injured in the second state is allowed to sue the person who caused the injury in the first state, even though the injury was not inflicted by the action that inflicted the injury didn't take place in the home state.
The second thing that I want to say is a matter of like, here we are too law school. So let's learn some good, effective techniques of appellate advocacy. See, the statutory construction issue should have been a strong place for petitioners. As Professor Parenteau said, Do the Clean Air Act does not preempt? And there was a moment in time where Justice Kagan, who threw out the U.S. and the industry's argument was very hostile, particularly to their constitutional claim, gave Mr. Russell, who represented Boulder, a question that felt like a hardball, but it was actually a softball and he kind of whiffed at it.
And she said, but but let's face it, isn't the Clean Air Act a comprehensive regulatory federal regulatory program that widely occupies the field of, you know, greenhouse gas regulation in the United States. And the first thing he did was to talk about the EPA and the endangerment finding. And I agree that's an important factor in something that we should think about.
But what what Justice Kagan said in response is where you all should learn to go as advocates first, not to what an administrative agency whose interpretations may change from administration to administration says. The law says, What does the law itself say? What is the purpose of the law? The purpose of the law is to reduce emissions, to make the environment cleaner, to protect our health.
Start from there. Okay. What else does the law say in its purpose statement? It talks about the importance of the state. In fact, it refers to the state that to controlling air pollution as a primary function of the state. So there's text in the Clean Air Act itself that is an immediate rejoinder to the question. Then you go through the standard preemption questions.
There's no field preemption. You can't say that the Clean Air Act occupies the entire field of regulating air pollution. Full stop, but definitely not greenhouse gas pollution. And a case that I'm very surprised that did not come up in the oral argument at all. A recent case westward versus EPA, which announced sort of really announced the major questions doctrine, the idea that EPA doesn't have the authority to regulate unless that authority is like very expressly given and in that case, under Section 111, the court said, no, you don't have the authority to do certain types of greenhouse gas emissions for from from stationary sources. And part of the rationale of that decision was respect for the traditional authority enjoyed by states. That was an opportunity, I think, for for for for the petitioners to grab on to a case that's beloved by the some of the majority that he are the conservatives that he needs at least one vote from, as Pat's, you know, head counting shows to really say, hey, wait, how can it be both ways?
And then you talk about, look, there's no impossibility or obstacle preemption. If Boulder wins, there's no party that wouldn't be able to comply with the emissions reductions under that are imposed under the Clean Air Act. Okay. Also, a key premise of the Clean Air Act, just like the Clean Water Act, cooperative federalism, the idea that the federal government sets the floor, not the ceiling, but the state authority is preserved to be more strict.
Okay. That's another thing he could have said. And he got around to this, but not as quickly as I would have liked to have seen. Then there's the savings clauses that are is expressly in the Clean Air Act to preserve state authority. And this is something that Justice Barrett was talking about. So it would have been another way to sort of plus one to something that a justice who you think might not go your way say, hey, but wait, you just we're talking about preserving state authority.
One of the things that's expressly preserved in the savings clause relating to the Clean Air Act citizens suits is state common law suits. The words are in the statute Court You do not need to make this up. You do not need to make hard policy judgments. Congress has made them for you. Just do your straightforward preemption analysis and you will get there.
And then the other thing that he should have said, and Pat really raised is and he did this is the thing I think he did the best, Mr. Russell, is to say, well, one of our whole bucket of our claims is about fraud and misrepresentation. And there's no nothing in the Clean Air Act that regulates how dishonest you are allowed to be when talking about the polluting and health-harming effects of your product. So that was a good thing, he said. And by the way, all these points that I'm making about the Clean Air Act are in his briefs and the brief of the Amichai.
Christophe Courchesne
Gets final thoughts from the panel in in about a minute. We've got at least a minute for each of you to sort of share what your takeaways are from this.
Pat Parenteau
We get to argue cases. We don't get to decide them. That's all you get. That's all you get. You make your best case. You make your most persuasive case. You analyze every single judge, jury, justice that you have to convince. You do your homework on the profile of every individual that's going to be making those decisions and you figure out what language to use, what tone to use, what words to use, what arguments to use, what precedents to cite. You build your case as strong as you possibly can. That's all you can do.
Rachel Westrate
Yeah. I mean, I think I said my my wrap up at the beginning, which is that I'm not as as depressed as I thought I would be after some core arguments. I think that there might be a way forward that lets us sort of fight on it in court another day and I have my fingers crossed for that outcome.
Anthony Iarrapino
I came to VLGS it was VLGS then, so I'm still just going to say that to do like just just like I was just an environmentalist is all about the environment now. I do a whole bunch of other things, and in part because of some great advice I got from Professor Dicus, he said, If you want to be a good environmental lawyer, you have to be a good lawyer. And if you're a good lawyer, then Boulder should win Suncor on very conservative principles, not politically conservative, but conservative principles of separation of powers, traditional understanding of federalism, and just how to argue from those cases. They want to make this about all environment is a different thing and climate change is such a big problem. Keep it out of the courts all together.
No, it's just another tort. It really is just another case of big companies producing products that inflict harm. And there has to be a right for that wrong. But the bottom line is this case should be decided all along. Traditional small “C” conservative legal principles and that the briefs did really excellent job of just doing good lawyering. And it happened to be an environmental case.
Christophe Courchesne
Thank you. Thank you, guys. And thank you very much for coming.
Another round of applause. Cheers.
Thanks to everyone online.
Narrator
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